The Wisconsin Supreme Court heard arguments on April 10 in one of the more important cases of the term, Koschkee v. Evers. The case presents important state constitutional issues centered on whether the Department of Public Instruction and Superintendent of Public Instruction violated the 2017 Regulations from the Need of Scrutiny Act (REINS Act). The case also will be closely watched to see whether the Supreme Court revisits and overturns its previous decision, Coyne v. Walker.

 

Background

In 2017, the Wisconsin Legislature passed comprehensive regulatory reform legislation that was signed into law by Gov. Scott Walker as Act 57. Known as the REINS Act, the law mandates that before a state agency may begin to work on drafting an administrative rule, the agency must first submit what is known as a “statement of scope” with the Department of Administration to determine whether the agency has explicit statutory authority to promulgate the rule. The agency must also submit the statement of scope to the governor for approval. The statement of scope provides a summary of the proposed administrative rule as well as the agency’s statutory legal authority to issue the rule. The REINS Act left in place previous law that requires, after the rule goes through the rulemaking process, final approval from the governor before it can go into effect.

After Act 57 went into effect, the Department of Public Instruction sent statements of scope to the Legislative Reference Bureau to be published in the Wisconsin Administrative Register without first submitting the statements of scope with the Department of Administration and governor as required by the law. In each statement of scope, the Department of Public Instruction stated that it was not required to submit the statements of scope to the Department of Administration and governor based on a previous court decision, Coyne v. Walker, which addressed a similar law enacted in 2011.

 

2016 Decision – Coyne v. Walker

In 2011, the Wisconsin Legislature enacted a comprehensive regulatory reform bill that was signed into law as Act 21. Similar to the REINS Act, Act 21 provided that state agencies could not begin to work on an administrative rule until the statement of scope was first submitted to the governor’s office for his or her approval. Act 21 also put in place the requirement that the final rule must be approved by the governor before it may go into effect.

Act 21 was challenged as unconstitutional as applied to the Department of Public Instruction and the Superintendent of Public Instruction. A fractured Wisconsin Supreme Court held that Act 21 was unconstitutional as applied to Department of Public Instruction and Superintendent. While a majority agreed Act 21 was unconstitutional, there was no majority opinion written by the Wisconsin Supreme Court in Coyne. Instead, a number of separate opinions written by former Justices Michael Gableman and David Prosser, and current Justices Shirley Abrahamson and Ann Walsh Bradley, declared Act 21 unconstitutional as applied to the Department and the Superintendent. No one of the opinions is controlling.

Chief Justice Patience Roggensack, joined by Justices Annette Ziegler and Rebecca Bradley, wrote a dissenting opinion arguing that Act 21 is constitutional and that the Department of Instruction and Superintendent had to abide by the rulemaking provisions in Act 21.

 

Koschkee v. Evers Preview

The Wisconsin Institute for Law Liberty filed a lawsuit directly with the Wisconsin Supreme Court in which it alleged that the Department of Public Instruction and former Superintendent of Public Instruction Tony Evers, now Gov. Evers, violated Act 57 by failing to submit the statements of scope with the Department of Administration and the governor. The Supreme Court accepted the case and set oral arguments for Wednesday, April 11.

What is different this time as compared to the Coyne case is the makeup of the Wisconsin Supreme Court. As previously noted, Justices Gableman and Prosser were part of the plurality opinion in Coyne that held that Act 21 was unconstitutional as it applied to the Department of Public Instruction and the Superintendent. Justice Prosser was replaced by Justice Daniel Kelly, while Justice Gableman was replaced by Justice Rebecca Dallet.

Assuming that Chief Justice Roggensack and Justices Ziegler and Rebecca Bradley rely on their previous Coyne opinion – in which they held Act 21’s requirement that any statements of scope by the Department of Public Instruction must be approved by the governor before it begins the rulemaking process – only one more justice is needed to join them to overrule the plurality decision in Coyne.

Therefore, it is safe to say that the attorneys from both sides will be directing their arguments at the two newest justices, Daniel Kelly and Rebecca Dallet. A decision by the court is expected some time this spring or summer.